THE SAVING GRACE OF THE ELECTORAL COLLEGE
BY
DAVID ARTHUR WALTERS
November 7, 2016
The Electoral College is frequently disparaged as an anti-democratic anachronism that should be done away with in favor of direct or popular election of presidents and vice-presidents.
Concerns over the current presidential election cycle that will result in the election of Hillary Clinton or Donald Trump brings to light the saving grace of the Electoral College, that the Electors are duty bound to exercise their discretion to redeem the Republic from the evils of democracy while at the same time recognizing its goods.
Mr. Trump’s Democratic opponents and an astonishing number of prominent members of the Republican Party believe he is unfit for office. He believes the election is “rigged,” and in a sense it was potentially rigged by the founding fathers, republicans who believed that popular election could be radically vicious because an unwitting electorate could, among other things, put an unfit person in the highest office.
That was an event the Electoral College was designed to prevent, besides balancing the interests of small and large states and ensuring independence of the chief executive from Congress. The Electoral College would make sure that the candidate would be chosen by highly qualified voters, at least those most likely to have and exercise good judgment and independence while represent diverse interests of a variety of states.
In the mother country people were constitutionally protected from unqualified chief executives. The members of Parliament are elected by the people. But the majority party or coaltion leader of the legislature is customarily appointed prime minister by the monarch. Who would know the qualifications of a majority leader better than his peers in Parliament? The prime minister, in turn, appoints a cabinet. He is in theory a prime minister among equals, but of late has acted as a virtual president. He must answer to Parliament every week. The cabinet therefore has legislative as well as executive powers. Who would know better the will of the legislator than legislators responsible for executing it? And that had better be done well or confidence will be lost in the government and it will be replaced.
But Americans did not like that monolithic system, preferring to break it up into branches and engage in balancing acts. In addition, the Americans constituted a bicameral legislature with a House and Senate, a throwback to the House of Lords when it had more than a veto power that could be overcome. Alexander Hamilton addressed the indirect election issue, stating that it was desirable that the “sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to judicious combination of reasons and inducements which were proper to govern their choices. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the discernment requisite to so complicated an investigation.”
Today electors in all but two states must pledge to cast their ballots for their party’s candidate. Those who fail to do so are called “faithless electors.”
Now there are circumstances that may arise, such as the death of a candidate, when an elector would not be able to exercise his or her pledge. There have been a number of broken pledges, but on no occasion were enough broken to influence the outcome of a presidential election. The entire Virginia delegation of 23 electors voted faithlessly against Democratic Vice Presidential Candidate Richard Mentor Johnson in 1836 because he admitted to an interracial relationship with his slave, but he was voted in by the Senate anyway.
What if something unforeseen was discovered to disqualify a presidential candidate, either close to or close after a general election? What if information was disclosed implicating the candidate in felonious conduct? What if the candidate committed or intended to commit some egregious act or misprision incompatible with democratic and republic values? What if the candidate appeared to be insane? Should not the elector be “faithless”? That would indeed be the honorable thing to do.
Although an elector is expected to honor his or her pledge, he may break it in extraordinary circumstances, and exercise his ethical duty to the country. Indeed, the federal constitution provides him with the discretion to do just that. The Electoral College constitutes a check on a democratic error of the worst sort, one that could end the Republic as we know it. That is the saving grace of Article II and Amendment XII of the United States Constitution.
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